Thursday, November 30, 2023

Litigation Misconduct Draws Reciprocal Censure

The New York Appellate Division for the First Judicial Department has imposed a reciprocal public censure for litigation misconduct in Massachusetts federal court

This matter arises out of respondent's conduct after he was admitted pro hac vice in March 2016 to serve as the plaintiffs' lead and effectively only counsel in a case before the U.S. District Court for the District of Massachusetts. In November 2020, the plaintiffs obtained new counsel, but the defendants nevertheless moved for sanctions and to refer respondent for disciplinary proceedings on account of his inappropriate behavior throughout the litigation process. Respondent opposed and the plaintiffs' new counsel moved for respondent's withdrawal, which the court allowed subject to resolution of the motion for referral. By January 12, 2021 order and decision, the district court found that there was credible evidence that respondent likely committed professional misconduct and granted the defendants' motion to the extent of referring the matter to the presiding judge for review and possible disciplinary action.

By order dated September 7, 2021, the District of Massachusetts found that there was clear and convincing evidence that respondent had engaged in litigation-related professional misconduct, including, inter alia, attempting to represent his clients without local counsel; repeatedly failing to conform his clients' second amended complaint to Federal Rules of Civil Procedure 8 (requiring a pleading contain "a short and plain statement of the claim showing the pleader is entitled to relief") and 9 (requiring that fraud claims must be pled with particularity) despite repeated warnings to do so; failing to produce appropriately relevant documents after litigation was reasonably anticipated; repeatedly interrupting proceedings even after he was judicially reprimanded; failing to comply with rules governing discovery motions; repeatedly failing to include memoranda with motions despite repeated specific warnings; repeatedly failing to confer with opposing counsel; repeatedly missing discovery deadlines; and repeatedly and brazenly threatening an opposing party with criminal prosecution during a deposition.

The district court directed respondent to file both the order that set forth its findings and the referral order that initiated the disciplinary proceedings with all jurisdictions in which he is admitted. Respondent must also file the orders with all jurisdictions in which he presently appears, seeks to appear pro hac vice, or seeks admission for a period of five years. No additional discipline was imposed. The United States Court of Appeals for the First Circuit affirmed on appeal.

The Attorney Grievance Commission sought a three-month suspension

Contrary to respondent's position, the infirmity of proof defense does not apply. Respondent received notice of the misconduct allegations against him and mounted a full and vigorous defense, as evidenced by his 37-page response to the district court's order to show cause, his testimony at the disciplinary hearing and his unsuccessful appeal to the First Circuit. Further, the district court found clear and convincing evidence of his professional misconduct based on the well-developed record, and such misconduct would also constitute misconduct in violation of New York Rules of Professional Conduct (22 NYCRR 1200.0) rules 1.3(a), 3.3(f)(4), 3.4(c), 3.4(e), and 8.4(h). As a result, the two other enumerated defenses also do not apply.

We find that the appropriate sanction is public censure of respondent, which is both commensurate with the discipline imposed by the federal court and in accord with our precedent involving comparable misconduct. Although the AGC argues that departure from the imposed federal discipline is necessary under the circumstances, the federal court did not suspend or revoke respondent's pro hac vice status. Instead, it directed respondent to file the order finding him guilty of misconduct, along with the referral order for disciplinary proceedings, with the jurisdictions in which he is admitted and, for a period of five years, with the jurisdictions in which he presently appears, seeks to appear pro hac vice, or seeks admission.

Consequently, the federal court in essence imposed a public censure by confining the discipline to finding respondent guilty of misconduct and ordering him to disseminate the orders referring him for disciplinary proceedings. This is generally consistent with New York precedent involving similar transgressions (see e.g. Matter of Mumford, 171 AD3d 180 [1st Dept 2019]; Matter of Gluck, 153 AD3d 301 [1st Dept 2017; Matter of Vialet, 120 AD3d 91 [1st Dept 2014]; see also Matter of Shanley, 136 AD3d 118 [4th Dept 2015]; Matter of Monaghan, 295 AD2d 38 [2d Dept 2002]

(Mike Frisch)

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